The opinion
On Motion for Rehearing.
LATTIMORE, J.
Appellant files a persuasive motion for rehearing, urging that a part of the charge given to the jury was so inapplicable as to make the giving of same fundamental error. We are unable to agree with the contention that an error apparent on the face of the record is necessarily fundamental in character. The "offense charged against appellant in the fourth count of the indictment — this being the count'submitted to *790 the jury — was the possession for the purpose of sale of liquor containing more than 1 per cent, of alcohol by volume. The proof seems to overwhelmingly support the fact of such possession by appellant. We have examined the record to see if there was any testimony before the jury to the fact that examination of the liquor in question showed it to be intoxicating, but have found none. As said in our original opinion, that part of the charge relating to the presumption arising from the possession of a given quantity of intoxicating liquor might be inapplicable in this case, but since the court put a provision in that part of his charge requiring the jury to believe, before they.could give weight to such presumption, that the liquor found in appellant’s possession was intoxicating, we are unable to see any great weight in the contention that the giving of such charge was harmful.
Being of opinion that the case was properly decided, the motion for rehearing will be overruled.